Union Departementale des Syndicats CGT de l'Aisne v. Sidef Conforama

and Others (Case C-312/89)

The State (Belgium) v. Andre Marchandise and Others (Case C-332/89)

Before the Court of Justice of the European

Communities

ECJ

(Presiding, Due C.J.; Moitinho de Almeida, RodrÍguez Iglesias and DÍez de

Velasco PP.C.; Joliet, Grévisse and Zuleeg JJ.) Mr. Walter Van Gerven, Advocate General.

28 February 1991

References from France by the Tribunal de Grande Instance (Regional Court), Saint Quentin, and from Belgium by the Cour d'Appel (Court of Appeal), Mons,

under Article 177 EEC. Provisions considered: EEC 5, 30, 34, 59, 85 Imports. Shop hours. Sunday closing. In principle a national prohibition on shops, or certain types of shop, opening on Sundays may have negative repercussions on the volume of sales and hence on the volume of imports, but no more than on that of similar domestic products [8]-[9]--Case 312/89; [9]-[10]--Case 332/89 Imports. Shop hours. Sunday closing. National laws which require shop employees to have at least a full day of rest each week, that day to be on Sunday, or which prohibit the employment of

employees in a shop after noon on Sundays, pursue an aim which *747 is justified with regard to Community law. Furthermore, any consequential indirect effects on trade, including non-discriminatory effects on imports, are proportionate to that aim, and so are compatible with Article 30 EEC. [11]- [12]--Case 312/89; [12]-[13]--Case 332/89 Exports. Shop hours. Sunday closing. Indirect non-discriminatory effects on exports of national laws restricting employment in shops on Sundays do not infringe Article 34 EEC. [17]--Case 332/89 Services. Shop hours. Worker protection. National laws laying down rules for the conduct of the retail trade with the aim of worker protection (in casu, shop Sunday closing hours) are to be tested under Article 30 EEC, as relating to the supply of goods, and not under Article 59 relating to services. [19]--Case 332/89 The Court interpreted Articles 30, 34, 59 and 85 EEC in the context of French laws which prohibited the employment of workers on Sundays and Belgian laws which prohibited the employment of workers in shops after noon on Sundays, to the effect that the restriction on Sunday shopping might have an indirect effect on trade, that any impact on imports was non-discriminatory, that the aim of the restrictions--protection of workers--was justifiable in terms of Community law, that the restrictions were proportionate to that aim, and so that Article 30 was not infringed; that with regard to any effect on exports, the restrictions were not designed to control patterns of inter-State trade, that they were applied in accordance with objective criteria to all traders in a given sector without distinguishing between intended domestic use and intended exportation by the consumer, and so that they did not infringe Article 34; that because the restrictions were appropriate to be examined for compatibility with Article 30 it was not appropriate to consider them in the light of Article 59, and so that Articles 59 to 66 did not apply; that there was no evidence that the restrictions were intended to reinforce any private arrangements in restriction of trade, and so that Article 85 did not apply; with the result that the restrictions were not prohibited by Community law. The following case was referred to in both judgments: 1. Torfaen Borough Council v. B & Q Plc (145/88), 23 November 1989: [1989] E.C.R. 3851, [1990] 1 C.M.L.R. 337. Gaz:145/88 The following cases were referred to in the judgment in Case 332/89: 2. P.B. Groenveld BV v. Produktschap voor Vee en Vlees (15/79), 8 November 1979: [1979] E.C.R. 3409, [1981] 1 C.M.L.R. 207. Gaz:15/79 3. Van Eycke v. Aspa NV (267/86), 21 September 1988: [1988] E.C.R. 4769,

[1990] 4 C.M.L.R. 330. Gaz:267/86 The following further cases were referred to by the Advocate General: 4. Bekaert v. Procureur de la Republique, Rennes(204/87), 20 April 1988: [1988] E.C.R. 2029, [1988] 2 C.M.L.R. 655. Gaz:204/87 5. H. Krantz GmbH & Co v. Ontvanger der Directe Belastingen (C-69/88), 7 March 1990: [1990] I E.C.R. 583, [1991] 2 C.M.L.R. 677. Gaz:69/88 6. Ministere Public v. Gauchard (20/87), 8 December 1987: [1987] E.C.R. 4879, [1989] 2 C.M.L.R. 489. Gaz:20/87 7. Nino (C-54 & 91/88 & 14/89), 3 October 1990: [1990] I E.C.R. 3537, [1992] 1 C.M.L.R. 83. Gaz:54/89 8. Cinetheque SA v. Federation Nationale des Cinemas Francais (60-61/84), 11 July 1985: [1985] E.C.R. 2605, [1986] 1 C.M.L.R. 365. Gaz:60/84 9. Procureur du Roi v. Dassonville (8/74), 11 July 1974: [1974] E.C.R. 837, [1974] 2 C.M.L.R. 436. Gaz:8/74 10. Roger Buet and Educational Business Services Sàrl v. Ministere Public (382/87), 16 May 1989: [1989] E.C.R. 1235. Gaz:382/87 11. Oebel (155/80), 14 July 1981: [1981] E.C.R. 1993, [1983] 1 C.M.L.R. 390. Gaz:155/80 12. Direction Generale des Impots v. Forest (Sangoy) (148/85), 25 November 1986: [1986] E.C.R. 3449, [1988] 2 C.M.L.R. 577. Gaz:148/85 *748 13. State v. Blesgen (75/81), 31 March 1982: [1982] E.C.R. 1211, [1983] 1 C.M.L.R. 431. Gaz:75/81 14. Quietlynn Ltd. v. Southend Borough Council (C-23/89), [1990] E.C.R. 3059, [1990] 3 C.M.L.R. 55. Gaz:23/89 15. Karl Prantl (16/83), 13 March 1984: [1984] E.C.R. 1299, [1985] 2 C.M.L.R. 238. Gaz:16/83 16. Attorney General v. Burgoa (812/79), 14 October 1980: [1980] E.C.R. 2787, [1981] 2 C.M.L.R. 193. Gaz:812/79 17. Sevince v. Staatssecretaris Van Justitie (C-192/89), 20 September 1990: [1990] I E.C.R. 3461, [1992] 2 C.M.L.R. 57. Gaz:192/89 18. 3 Glocken GmbH, Gertraud Kritzlinger v. Unità Sanitaria Locale Centro-Sud & Provincia Autonoma di Bolzano (407/85), 14 July 1988: [1988] E.C.R. 4233. Gaz:407/85 19. GB-INNO-BM v. Confederation du Commerce Luxembourgeoise (362/88), 7 March 1990: [1990] I E.C.R. 667, [1991] 2 C.M.L.R. 801. Gaz:362/88 20. Rewe-Zentral AG v. Bundesmonopolverwaltung für Branntwein (Cassis de Dijon) (120/78), 20 February 1979: [1979] E.C.R. 649, [1979] 3 C.M.L.R. 494. Gaz:120/78 21. Pfizer Inc. v. Eurim-Pharm GmbH (1/81), 3 December 1981: [1981] E.C.R. 2913, [1982] 1 C.M.L.R. 406. Gaz:1/81 22. Officier Van Justitie v. de Peijper (104/75), 20 May 1976: [1976] E.C.R. 613, [1976] 2 C.M.L.R. 271. Gaz:104/75 23. Re Ultra Heat Treated Milk: E.C. Commission v. United Kingdom (124/81), 8 February 1983: [1983] E.C.R. 203, [1983] 2 C.M.L.R. 1. Gaz:124/81

24. Criminal Proceedings against Gourmetterie Van den Burg BV (C-169/89), 23 May 1990: [1990] I E.C.R. 2143. Gaz:169/89 25. Openbaar Ministerie v. Oosthoek's Uitgeversmaatschappij BV (286/81), 15 December 1982: [1982] E.C.R. 4575, [1983] 3 C.M.L.R. 428. Gaz:286/81 26. Syndicat National des Fabricants Raffineurs D'Huile de Graissage v. Inter-Huiles GIE (172/82), 10 March 1983: [1983] E.C.R. 555, [1983] 3 C.M.L.R. 485. Gaz:172/82 27. Jongeneel Kaas BV v. the State (Netherlands) and Stichting Centraal Orgaan Zuivel-Controle (237/82), 7 February 1984: [1984] E.C.R. 483, [1985] 2 C.M.L.R. 53. Gaz:237/82 28. Vereniging Van Vlaamse Reisbureaus v. Sociale Dienst Van Plaatselijke en Gewestelijke Overheidsdiensten (311/85), 1 October 1987: [1987] E.C.R. 3801, [1989] 4 C.M.L.R. 213. Gaz:311/85 The following additional cases were referred to in argument, in Case 312/89: 29. United Foods NV v. Belgian State (132/80), 7 April 1981: [1981] E.C.R. 995, [1982] 1 C.M.L.R. 273. Gaz:132/80 *749 in Case 332/89: 30. Heintz Van Landewyck Sàrl, Federation Belgo-Luxembourgeoise des Industries du Tabac Asbl (FEDETAB) v. E.C. Commission (209-215/78 & 218/78), 29 October 1980: [1980] E.C.R. 3125, [1981] 3 C.M.L.R. 134. Gaz:209/78 Representation Case 312/89 F. Thiriez and, in the written proceedings, Arnaud Lyon-Caen, Françoise Fabiani and Loise Liard, all of the Conseil d'Etat and Cour de Cassation Bars, for the plaintiff. J.C. Fourgoux, and in the written proceedings, Michel Distel, both of the Paris Bar, for the defendants. Edwige Belliard, Deputy Director of Legal Affairs at the Ministry of Foreign Affairs, and Géraud de Bergues, Deputy Principal Secretary at the Ministry of Foreign Affairs, for the French government as amicus curiae. *750 Richard Wainwright, Legal Adviser to the Commission, and Hervé Lehman, a French Civil Servant on secondment in the Commission's Legal Service, for the E.C. Commission as amicus curiae. Case 332/89 Francis Bauduin and M. Tailleurs, of the Brussels Bar, and in the written proceedings only, Jean Wagener, of the Luxembourg Bar, for the plaintiffs. Rene Barents, of the Commission's Legal Service and Hervé Lehman, a French Civil Servant on secondment there, for the E.C. Commission as amicus curiae.

TABULAR OR GRAPHIC MATERIAL SET FORTH AT THIS POINT IS NOT DISPLAYABLE Facts Case C-312/89 Under sections L.221-2, L.221-4 and L.221-5 of the Code du Travail (Labour code) in force in the territory of France, the weekly rest period to be granted to employees, a minimum of 24 consecutive hours, must be allowed on Sunday. That rule is subject to many exceptions, which are laid down by section L.221-5-1 et seq. of the Code and may be divided into three board categories: -- establishments within certain exhaustively listed sectors, such as restaurants, tobacconists' shops, florists selling natural flowers, hospitals, and industries using highly perishable materials (a category in which some retail food shops must also be included); -- industrial undertakings within a sector for which a collective agreement has allowed an exemption from the rule requiring the Sunday rest period; -- undertakings holding a permit from the Prefect, issued on the ground that the simultaneous observance of Sunday as a rest period by the entire staff would adversely affect the general public or impair the normal functioning of the undertaking in question. On the ground that SIDEF Conforama, Arts et Meubles and Jima were opening their shops on Sundays and employing their staff on those days, the Union Départmentale des Syndicats CGT de l'Aisne (Federation of CGT Trade Unions in the Department of Aisne) submitted an interlocutory application to the Tribunal de Grande Instance (Regional Court), Saint-Quentin, for an injunction to restrain the respondent companies from opening their shops on Sundays, subject to a fine for contravention. The President of the Tribunal de Grande Instance, Saint-Quentin, made an order on 5 October 1989 referring to the Court for a preliminary ruling two questions worded as follows: *751 Can the concept of 'measures having equivalent effect' to quantitative restrictions on imports contained in Article 30 EEC be applied to a general provision whose effect is to prohibit Sunday working for employees, inter alia in a sector such as furniture retailing, when: (1) that sector deals to a large extent in products imported, inter alia, from member-States of the EEC; (2) a considerable proportion of the sales of undertakings in that sector is made on Sundays in cases where those undertakings have taken the step of contravening the provisions of national law; (3) closure on Sundays has the effect of reducing the volume of sales effected and thus the volume of imports from member-States of the Community; and, finally,

(4) the obligation to allow employees their weekly rest period on Sundays does not apply in all the member-States? If so, can the characteristics of the sector in question be regarded as meeting the criteria set out in Article 36 EEC? Case C-332/89 Section 11 of the Belgian Loi sur le Travail (Labour Act) of 16 March 1971 lays down the principle that 'it is prohibited to employ workers on Sundays'. Section 53 further provides that failure to comply with that rule makes the employer liable to imprisonment and fines. Section 12 et seq. of that Act set out the exemptions from the prohibition on the employment of workers on Sundays. It is permitted inter alia to employ workers on Sundays for the surveillance of the premises used by the undertaking, for urgent cleaning, repairs and preservation work, or in seasonal industries, or in undertakings which employ workers in shifts. As far as retail shops are specifically concerned, workers may work on Sunday mornings from 8 to 12 o'clock, subject to an administrative prohibition in respect of certain communes. The administrative authority may also permit Sunday working in undertakings for the purpose of performing certain specified tasks. André Marchandise, a director of SA Trafitex, and Jean-Marie Chapuis, an employee of that company, were prosecuted for having employed on several occasions between 14 September 1986 and 14 December 1986 nine workers on a Sunday after 12 noon in a retail shop, contrary to the Loi sur le Travail of 16 March 1971. On 1 June 1988 the Tribunal Correctionnel (Criminal Court), Charleroi found the accused guilty of the offences and fined them, with terms of imprisonment in the alternative--the sentences being suspended in the case of Jean-Marie Chapuis. In the same judgment Trafitex SA was declared liable in civil law to pay the fines. All the parties appealed against the judgment, and the Fourth Chamber of the Cour d'Appel, Mons, sitting as a criminal court, made an order in which it referred to the Court for a preliminary ruling a question as to whether: *752 Sections 1, 11, 14(1), 53, 54, 57, 58 and 59 of the Act of 16 March 1971, as amended in particular by the Act of 20 July 1978 and by Royal Decree No 15 of 23 October 1978, [are] contrary to Articles 3(f), 5, 30 to 36, 59 to 66 and 85 EEC. The judgment of the national court was registered at the Court Registry on 27 October 1989.

Opinion of the Advocate General (Mr. Walter Van Gerven) 1. The Tribunal de Grande Instance (Regional Court), Saint-Quentin, and the Cour d'Appel (Court of Appeal), Mons, have submitted to the Court a number of questions for a preliminary ruling on the compatibility with Community law of a rule of national law prohibiting the employment of workers on Sundays. In view of the similarity between the rules of national law referred to in the disputes in the main proceedings, and also having regard to the fact that the two references

raise largely the same questions of Community law, I shall deal with both cases in a single Opinion.

Background 2. In the main proceedings in Case C-312/89, the Union Départementale des Syndicats CGT de l'Aisne seeks an injunction restraining Conforama, which sells furniture and household equipment, from opening its shops on Sundays, subject to a fine for contravention. The claim is based on a certain provision of Chapter 1 of Title II of the French Code du Travail (Labour Code), according to which the weekly rest day for workers must in principle be granted to them on Sunday (see section L.221-5 in conjunction with sections L.221-2 and L.221-4). There are three kinds of exceptions to that fundamental rule. First, the prohibition is waived in a number of sectors exhaustively listed in the Code du Travail, for instance restaurants, hospitals, newspaper vendors and so on (see section L.221-9 of the Code du Travail). Secondly, an except on may be made in the case of undertakings whose staff work in shifts; the application of that exception depends in principle on the conclusion of a collective labour agreement (see sections L.221-5-1 and L.221-10 of the Code du Travail). Finally, temporary derogations may be granted on request by a local authority (see sections L.221-6, L.221-7 and L.221-19 of the Code du Travail). It does not appear to be disputed that the defendants in the main proceedings are not entitled to the application of any of those exceptions. However, they have opposed the plaintiff's claim on the ground that the prohibition on the employment of workers on Sundays introduced by the Code du Travail must be regarded as contrary to Articles 30 and 85 EEC. The national court, the Tribunal de Grande Instance, Saint-Quentin, has agreed to refer to the Court for a *753 preliminary ruling a question which, however, is limited to the interpretation of Article 30 EEC. That question is worded as follows: [The Advocate General repeated the questions, and continued:] 3. The first defendant in the second case, C-332/89, is managing director of Trafitex SA, a company which runs a department store managed by the second defendant. They were prosecuted before the Tribunal Correctionnel (Criminal Court), Charleroi, which sentenced them on 1 July 1988 to payment of a fine with terms of imprisonment in the alternative for committing an offence contrary to the Belgian Loi sur le Travail (Labour Act) of 16 March 1979; the appeal lodged against that judgment is pending before the national court, the Cour d'Appel, Mons. Section 11 of the Loi sur le Travail prohibits the employment of workers on Sundays. Once again, there are several exceptions. Section 3(1) of that Act excludes certain categories of workers (including persons employed by the State, persons working in a family business and fishermen) from the scope of the prohibition. Further exceptions are set out in section 12 et seq. of the Act and apply, amongst other things, to the supervision, cleaning and maintenance of business premises, to shift work and so on. Section 13 of the Act provides that a list may be drawn up by royal decree of undertakings in which, and of tasks for which, workers may be employed on Sundays. Retail shops whose staff may not,

on the basis of that list, work on Sundays are authorised by section 14(1) of the Act to employ their workers on Sundays from 8 a.m. to twelve noon. More specifically, the defendants in the main proceedings are charged with employing workers on Sunday after twelve noon, contrary to the last-mentioned provision. In the proceedings before the Cour d'Appel, the defendants maintain that the prohibition in question is incompatible with both the provisions of the EEC Treaty on the free movement of goods and services and Article 85 EEC. Taking the view that the defendants' arguments do not at first sight appear to be entirely devoid of substance, the national court has submitted the following question to the Court of Justice for a preliminary ruling. [The Advocate General repeated the question, and continued:] That question must be understood as seeking from the Court a ruling on the interpretation of the aforesaid Treaty provisions so as to enable the national court to assess the compatibility with Community law of the aforesaid provisions of national law. [FN1] FN1 See Case 204/87, Bekaert: [1988] E.C.R. 2029, [1988] 2 C.M.L.R. 655, at para. [5], and Case C-69/88, Krantz v. Ontvanger der Directe Belastingen [1990] I E.C.R. 583, [1991] 2 C.M.L.R. 677, at paras [7] and [8].

The interpretation of Article 30 EEC 4. The answer to be given to the questions for a preliminary ruling *754 now before the Court concerning Article 30 EEC must be influenced to a large extent by Case C-145/88, Torfaen Borough Council v. B & Q Plc. [FN2] The Cwmbran Magistrates' Court, United Kingdom, had asked the Court for a ruling on the question whether a national rule which in principle prohibited the sale of goods on Sundays was to be regarded as contrary to Article 30 EEC. The court ruled as follows: Article 30 EEC must be interpreted as meaning that the prohibition which it lays down does not apply to national rules prohibiting retailers from opening their premises on Sunday where the restrictive effects on Community trade which may result therefrom do not exceed the effects intrinsic to rules of that kind. FN2 [1989] E.C.R. 3851, [1990] 1 C.M.L.R. 337. 5. Before considering that judgment in greater detail, I should like to draw attention to the similarity between the national legislation which forms the subject-matter of the reference in Case C-145/88 and that which forms the subject-matter of the reference in the cases now before the Court. Whereas Case C-145/88 was concerned with a general prohibition on Sunday trading, these cases are concerned with a prohibition on employing workers on Sundays. In my view that distinction is not of great importance: as regards the application of Article 30 EEC the effects on intra-Community trade resulting from the two types of legislation are very similar. In Case C-145/88 the national court found that the ban on Sunday trading had led to a reduction in the total sales of the undertaking concerned, that approximately 10 per cent. of the goods sold by

that undertaking came from other member-States and that a corresponding reduction of imports from other member-States would therefore ensue. In the present cases, the national courts would seem to be confronted with a similar pattern of facts. In the question submitted to the Court in Case C-312/89, mention is expressly made of three findings of fact by the national court: the defendants operate in a sector that deals to a large extent in products imported from other member-States of the EEC, a considerable proportion of the sales of undertakings in that sector is made on Sundays, and closure on Sundays has the effect of reducing the volume of sales effected and thus the volume of imports from other member-States. The order for reference in Case C-332/89 does not contain any comparable findings, but it appears from the documents before the Court that an expert's report was commissioned by the Tribunal Correctionnel, Charleroi, which shows that between September 1986 and December 1987 approximately 22 per cent. of the undertaking's turnover was made on Sundays and that if Sunday rather than Tuesday were designated as the weekly closing day a loss of turnover amounting to approximately 13 per cent. would ensure. [FN3] I also assume that, according to the finding made by the national court, the loss of turnover also related to products imported from other member-States. *755 Otherwise this would be a situation which, in the absence of any cross-frontier factor, would fall entirely within the internal sphere of a member-State, to which Article 30 is inapplicable. [FN4] FN3 See Annex 2 to the observations of the defendants in the main proceedings. FN4 That principle was laid down by the Court in general terms (albeit in connection with freedom of establishment) in Case 20/87, Ministere Public v. Gauchard: [1987] E.C.R. 4879, [1989] 2 C.M.L.R. 489, at paras. [11] and [12]; see also, for a recent application of that principle in connection with the freedom to provide services, Joined Cases C-54/88, C-91/88 &; C-14/89, Nino: [1990] E.C.R. 3537, [1992] 1 C.M.L.R. 83, at paras. [10] and [11]. As will become apparent, moreover, there is a strong similarity as regards the grounds which may be relied upon to justify them between the legislation which was the subject-matter of Case C-145/88 and that at issue in the present cases. The relevance of the judgment given in the former case is, for that reason, all the greater. 6. In B & Q, the Court pointed out that the contested legislation was applicable to imported and domestic products alike: paragraph [11]. It should be noted that the legislation concerned was applicable without distinction not only formally but substantively as well: it was apparent from the order for reference that the production or marketing of imported goods was not rendered more difficult than that of domestic goods. Referring to Cinetheque, [FN5] the Court stated that the compatibility with Community law of such legislation, neutral with regard to imported and domestic goods, depended on a twofold examination, namely whether the legislation pursues an objective which is justified with regard to

Community law and whether the obstacle to Community trade created by such legislation exceeds what is necessary for the attainment of the objective in view: see paragraph [12]. [FN6] The Court thereby acknowledged implicitly but unequivocally that the measure concerned was at first sight covered by the expression used in Dassonville, that is to say it was to be regarded as a 'trading rule ... capable of hindering, directly or indirectly, actually or potentially, intra-Community trade.' [FN7] FN5 Joined Cases 60 & 61/84, Cinetheque v. Federation Nationale des Cinemas Francais: [1985] E.C.R. 2605, [1986] 1 C.M.L.R. 365, in particular at para. [22]. FN6 This wording is more precise, in my view, than that referred to in the operative part of the judgment, quoted in para. [4] above, in which there is no reference to 'what is necessary' but only to the 'effects' intrinsic to rules of that kind. The criterion of 'necessity' has a normative content which the ' effects' criterion lacks. FN7 Case 8/74, Procureur du Roi v. Dassonville: [1974] E.C.R. 837, [1974] 2 C.M.L.R. 436, at para. [5]. I should like to raise two points in that regard. In my Opinion in Case C-145/88 I proposed that the scope of the expression used in Dassonville should be slightly curtailed and that with regard to commercial legislation applicable to imported and domestic products alike the criterion of partitioning of the market which is used in competition cases should be applied. [FN8] In its judgment the Court did not take up that suggestion, implicitly preferring the Dassonville criterion in its broad terms, which it took as a point of departure. Should the *756 Court wish to take a different approach in this case, I would refer it to my Opinion in the B & Q case. I am now proceeding on the assumption that the Court has opted in favour of the Dassonville rule once and for all and I therefore take that rule as my point of departure in this Opinion. This does not mean that the partitioning of the market which may result from national legislation is not something which can and indeed must be taken into account when it is necessary, in determining whether a given obstacle exceeds what is necessary, to compare the effect and purpose of the legislation examined (see paragraph [12] below). FN8 Opinion delivered at the sitting on 29 June 1989, at p. 3871 (E.C.R.), p. 347 (C.M.L.R.). A further point relates to the consequences of the Dassonville criterion for the national court. Although it is in principle for the national court to determine whether the national legislation in question is in fact capable of hindering intra-Community trade directly or indirectly, actually or potentially, the Dassonville rule, to which the Court adhered in B & Q, is so broad as to cover any legislation which contains a cross-frontier element as regards its purpose or effect. It is apparent from the case law of the Court that even legislation which can create an

obstacle to imports in the case of a single trader [FN9] is in principle caught by the Dassonville criterion, [FN10] or at least that the existence of such a possibility is considered sufficient to prompt the Court to examine whether there is any justification under Articles 30 or 36. [FN11] It is only when it does not impede the marketing of the product concerned at the level relevant for the purposes of intra-Community trade, [FN12] leaves other methods of marketing the same product intact, [FN13] or allows the product to be marketed without impediment through alternative circuits [FN14] that legislation does not fall within Article 30. [FN15] FN9 That would not be the case here if it became apparent that in the case of the product concerned the trader made good on other days of the week the loss of turnover resulting from the prohibition on Sunday working. FN10 See Case 382/87, Buet v. Ministere Public: [1989] E.C.R. 1235, at paras. 7 to 9, as well as B & Q. FN11 That is clearly the case in B & Q, where the existence of a justification is sought in the light of the possible effects on Community trade which may result from the national rules under examination; see the operative part of the judgment. FN12 Case 155/80, Oebel: [1981] E.C.R. 1993, [1983] 1 C.M.L.R. 390, at paras. 19 and 20. See also Case 148/85, Direction Generale des Impots v. Forest [1986] E.C.R. 3449, 1988 2 C.M.L.R. 577, at para. [19]. FN13 Case 75/81, Blesgen v. Belgium: [1982] E.C.R. 1211, [1983] 1 C.M.L.R. 431, at para. 9. FN14 See Case C-23/89, Quietlynn v. Southend Borough Council: [1990], [1990] 3 C.M.L.R. 55, I E.C.R. 3059, at para. 11. FN15 It is clear from the last two situations that the Court accepts that one trader's loss of turnover can be made up for by additional sales made by other traders in the same member-State. In that regard the Court relies on simple possibilities resulting from the scope of the legislation examined (see, for instance, para. [19] of the judgment in Oebel, cited in footnote 1), without requiring statistical evidence, which in practice cannot easily be furnished. 7. Since in B & Q the Court acknowledged that the prohibition in Article 30 was applicable in principle to a rule prohibiting retailers from opening their premises on Sunday, it follows, in the light of the *757 similarity established earlier (see paragraph [5] above), that the same conclusion must be drawn with regard to the prohibitions on Sunday working in the cases now before the Court, at least where in each of those cases the national court has established that the legislation was potentially capable of restricting imports within the meaning of the Dassonville criterion.

Nevertheless, I cannot leave it at that, since I would thereby ignore an important matter to which the Commission has drawn attention in its observations. In B & Q the Court states that the question whether the effects of specific national rules in fact actually remain within the framework (as required by the judgment: see paragraph 6 above) of commercial legislation which ex hypothesi is justified is a question of fact to be determined by the national court: paragraph 16. The Commission argues that the assessment of the need for and proportionality of specific legislation cannot be left to the national courts, and the arguments which it advances in support of that view are in my opinion persuasive. Admittedly, it is not for the Court to rule in proceedings under Article 177 EEC on the validity of national legislation; nevertheless the Court has always emphasised that, in the interest of the co-operation with the national judicial authorities which that provision envisages, it is empowered to set out the elements of Community law which will enable the national court to give judgment on the dispute before it in accordance with the rules of Community law. [FN16] Only in that way is it possible to safeguard the main purpose of the preliminary ruling procedure, namely to ensure the uniform application in the Community of the provisions of Community law in order to prevent their effects from varying according to the interpretation given to them in the different member-States. [FN17] FN16 See, for instance, Case 16/83, Prantl: [1984] E.C.R. 1299, [1985] 2 C.M.L.R. 238, and Case 812/79, Attorney General v. Burgoa: [1980] E.C.R. 2787, [1981] 2 C.M.L.R. 193, especially at para. 13. FN17 See, for instance, Case C-192/89, Sevince v. Staatssecretaris Van Justitie: [1990] E.C.R. 3461, [1992] 2 C.M.L.R. 57, at para. [11]. More specifically, in connection with the national court's examination of the permissibility of national legislation, this implies that sufficiently clear criteria are made available to that court to enable it to ascertain whether national legislation is in conformity with Community law. [FN18] In its case law on the free movement of goods the Court has steadfastly adhered to that principle, [FN19] and I would firmly recommend that it continue to do so. FN18 In that respect B & Q leaves more than one question unanswered, as is illustrated by the reference in Case C-304/90 Which Has Just Been Lodged at the Registry, In Which the Reading and Sonning Magistrates' Court Asks A Series of Detailed Questions on the Interpretation of That Judgment and, In Particular, the Application of the Criterion of Proportionality (See the Second Question Submitted for A Preliminary Ruling In That Case). FN19 See, for instance, Cinetheque, already referred to in footnote 5, at paras. [22] and [23], and Case 407/85, 3 Glocken v. USL Centro-Sud: [1988] E.C.R. 4233, at paras. 12 to 27. See also Case C-362/88, GB-INNO-BM v. Confederation du Commerce Luxembourgeois [1990] I E.C.R. 667, [1991] 2 C.M.L.R. 801.

In the present cases, the need for precise criteria is admittedly not so *758 great since, following B & Q, the issue can easily be resolved. Nevertheless, even in clear-cut cases it is still necessary to set the solution in a general context. Otherwise there is a risk of creating an obscure line of cases of little assistance to the national courts. 8. In my search for general criteria, I shall, in accordance with the reasoning followed by the Court in B & Q, first consider when it can be said that national legislation which, like that now before the Court, is entirely neutral with regard to imported products and domestic products, pursues an objective which is justified by Community law, and then consider in further detail the question whether any obstacles to trade which may be caused by the legislation exceed what is necessary in order to achieve the objective pursued. That presupposes a threefold examination, namely to ascertain whether or not the purpose of the legislation is justified (paragraphs 9 to 11 below), to ascertain the nature of the obstacles created by the legislation (paragraph 12), and finally to ascertain the need for those obstacles (paragraphs 13 and 14). 9. Let us begin with the question whether the legislation under consideration pursues an objective justified by Community law. In the observations submitted to the Court no attempt whatsoever is made to justify the legislation by reference to any one of the grounds listed in Article 36. Not does the Court do so in B & Q. Rightly so, in my view, since the sole ground which can reasonably be taken into account is the protection of public health. Admittedly, the prohibition on the employment of workers on Sundays safeguards a day of rest for workers, and consequently promotes the 'health ... of humans', but it is nevertheless directed at another objective, as specified below, in precisely the same way as a prohibition on Sunday trading imposed on self-employed traders. [FN20] FN20 If its purpose is the protection of the health of humans, there is no justification for requiring the compulsory day of rest to be taken on the same day: see below. The position is different as regards the 'mandatory requirements' recognised by the Court in Cassis de Dijon. [FN21] The protection of the working environment (expressly referred to in Article 100a EEC) and the related interest of workers' welfare can undoubtedly be regarded as a mandatory requirement. However, neither of those requirements is sufficient in itself because, as the defendants in Case C-312/89 state, they do not provide a sufficient justification of the duty imposed on employers to grant the weekly rest day on one and the same day, namely on Sunday. A rule which prohibits the employment of workers on Sundays can be justified only if it is compatible with Community law for a member-State to opt for a prohibition on Sunday working or Sunday trading in order to enable its citizens as far as possible to enjoy the same day of rest, thereby enabling them freely to pursue all kinds *759 of non-occupational (such as family, religious, cultural and sports) activities together. This means, however, that a fresh justification is added to the list of mandatory requirements.

FN21 Introduced by Case 120/78, Rewe Zentrale v. Bundesmonopolverwaltung für Branntwein: [1979] E.C.R. 649, [1979] 3 C.M.L.R. 484, at para. 8. 10. In that respect B & Q illustrates a remarkable trend. It refers first to Oebel, [FN22] in which the Court stated--albeit not directly in connection with the assessment of a possible justification--that a German prohibition on working in the bakery industry before 4.00 a.m. ... in itself constitutes a legitimate element of economic and social policy, consistent with the objectives of public interest pursued by the Treaty. Indeed, this prohibition is designed to improve working conditions in a manifestly sensitive industry, in which the production process exhibits particular characteristics resulting from both the nature of the product and the habits of consumers' (paragraph 12). FN22 Supra. Proceeding on that basis in the B & Q judgment, this time in connection with the assessment of a justification, the Court stated that: The same consideration must apply as regards national rules governing the opening hours of retail premises. Such rules reflect certain political and economic choices in so far as their purpose is to ensure that working and non-working hours are so arranged as to accord with national or regional socio-cultural characteritics, and that, in the present state of Community law, is a matter for the member-States ... (paragraph 14.) [FN23] FN23 See also the remainder of this passage, in para. 12 below. In that and other judgments, [FN24] it is possible to detect a readiness on the part of the Court to recognise, alongside the 'classic' justifying grounds based on the Cassis de Dijon doctrine (such as the protection of consumers, fair trading and, in conjunction with those two grounds, the pursuit of market transparency, the effectiveness of fiscal supervision, and the protection of the environment and the working environment), some of which have now been incorporated in Article 100a EEC, further 'mandatory requirements' and to classify them, with or without the existing ones, under a single rubric. This might, for instance, be described as: all national legislation whose enactment entails political, cultural or socio-economic policy choices which are in keeping with the objectives in the general interest pursued by the Treaty (such as those referred to in Article 100a) or is appropriate to specific national or regional socio-cultural or other features which, in the present state of Community law, are to be assessed by the member-States. FN24 See, inter alia, Cinetheque, cited in footnote above. The crux of the matter--if the broad rule laid down by the Court in Dassonville is

taken as a point of departure--is the need to classify the numerous potential justifications as far as possible under a general but exhaustive rubric. It is clear from the attempt made in the preceding paragraph that such a rubric cannot, in view of the vague concepts which it expresses, provide a firm line of action. Nevertheless, it can, to *760 some extent, serve as a rough guide. It is clear, for instance, that the designation of Sunday as a general day of rest falls under that rubric, as the Court indeed indicated in B & Q: the imposition of at least one weekly rest day is undoubtedly a policy choice directed at the protection of the working environment and of the health of humans, which are objectives recognised by the Treaty. The designation of Sunday as the day of rest is a choice suited to the specific socio-cultural characteristics of the member-State in question. 11. The difficulty of establishing an entirely conclusive general guideline with regard to justifying grounds makes it all the more importance to maintain a proper division of tasks between the national courts and the Court of Justice. To be sure, it is first and foremost for the national court to assess the conformity with Community law of specific national legislation and to ascertain whether it falls within one of the grounds of justification, but in so doing it must take into account the case law of the Court. This means, in my view, that where a justification relied upon before the national court in relation to national legislation is not linked to one of the grounds already expressly referred to by the Court, the national court ought to submit a question to the former for a preliminary ruling. It is then for the Court to determine whether a new justification which has been relied upon is acceptable. If the answer is in the affirmative, it is then a matter for the national court to ascertain whether the national legislation, as interpreted and applied, actually pursues the intended objective which the Court has acknowledged is in keeping with the Treaty, or whether it is used for another purpose. Hence it is also for the national court to assess whether any action is to be taken on complaints such as those of the defendants in the main proceedings concerning the inconsistency and the sporadic or uneven application of the legislation under consideration. If such application leaves intact the justification for the legislation according to Community law, it is not for the Court to rule on that legislation. 12. If the national legislation in question falls within a ground of justification, the next step is to examine the nature and extent of the obstacles created by it. It may be seen from the Court's case law that in that respect too the Court lays down guidelines in response to questions of interpretation which national courts must take into account. In that regard, it is important first of all to determine that the national legislation in question is applicable without distinction to imported and domestic products and that it does not render the marketing of imported products more difficult than that of domestic products. If the national legislation is not discriminatory either in formal or substantive terms, the next step is to ascertain whether it is *761 'designed to govern the patterns of trade between member-States'. [FN25] That cannot be said of legislation which imposes a restriction on opening hours for shops or on the employment of workers on Sundays--that is to say, concerns

rules which govern the exercise of a commercial activity and are not aimed at a specific product. Nevertheless, it is still necessary to ascertain whether the legislation may have an 'unintended' effect on intra-Community trade in the broad sense of the term as used by the Court in Dassonville. That would undoubtedly be the case if the legislation were to hinder in one way or another interpenetration between the domestic markets within the Common Market--for instance, if it had the effect of raising barriers within a member-State so as to render access to the domestic market more difficult (more expensive) or less attractive (unprofitable) to producers of, or dealers, in goods from other member-States. [FN26] Once again, that cannot normally be said of legislation which prohibits Sunday trading or Sunday working. FN25 See B & Q, cited above, at para. 14, final sentence. That expression can also be found in other judgments: see, for instance, Quietlynn, cited in footnote at para. 11; Krantz, cited in footnote at para. 11; and Cinetheque, cited in footnote 5, at para. 21 (in which it was stated that this was the case with regard to any system applicable without distinction to domestic and imported products). FN26 For more details on that point, see my Opinion in Case C-145/88, Referred to In Footnote 8, pp. 3874-3878 (E.C.R.), pp. 351-356 (C.M.L.R.). 13. The extent to which it can be concluded that legislation, in the terms of the B & Q judgment (paragraph 12), does 'not exceed what [is] necessary in order to ensure the attainment of the objective in view' (which is ex hypothesi justified with regard to Community law), will depend on the extent to which the examination of the effects of the legislation reveals the existence of a serious obstacle to intra-Community trade. Thus legislation which clearly as the effect of partitioning the market, even if it is not designed to govern patterns of trade between member-States, clearly goes far beyond what is strictly necessary in order to achieve the objective pursued. [FN27] However, legislation of the kind at issue in these cases, which is not designed to govern patterns of trade between member-States or to partition the market, can easily be regarded as remaining within the limits of what is necessary. FN27 It might well be regarded as a 'disguised restriction on trade between member-States' within the meaning of the last sentence of Article 36 EEC, in which case none of the justifications under Article 30 or Article 36 can be relied upon. See Case 1/81, Pfizer v. Eurim-Pharm: [1981] E.C.R. 2913, [1982] 1 C.M.L.R. 406, in which the Court considered that Article 36 prohibited the use of a trade mark so as to create an artificial partitioning of the markets within the Community: see also the Opinion of Capotorti A.G. In That Case, In Particular at p. 2935 (E.C.R.) p. 4117 (C.M.L.R.). 14. That brings us to the classic requirements of necessity and proportionality applied by the Court. Although those two requirements are frequently examined at the same time in the judgments of the Court, as part of an analysis which

adheres closely to *762 the specific legal and factual situation, [FN28] the two concepts are not co-extensive. [FN29] The requirement of necessity has two aspects: first of all that the national legislation in question is in fact relevant for the attainment of the objective pursued--in other words, that there is at least potentially a causal connection between the two; secondly, there there is no alternative to such legislation which is equally effective but less restrictive of intra-Community trade (the criterion of the least restrictive alternative). The criterion of proportionality, on the other hand, is to be understood as meaning that even if legislation is relevant and is the least restrictive of trade, it is nevertheless incompatible with Article 30 (and must therefore be repealed or replaced by a less effective measure) where the obstacle which it creates to intra-Community trade is out of proportion to the objective pursued. FN28 See, for instance, Case 104/75, De Peijper: [1976] E.C.R. 613, [1976] 2 C.M.L.R. 271, at paras. 21 and 22, and Case 124/81 E.C. Commission v. United Kingdom: [1983] E.C.R. 203, [1983] 2 C.M.L.R. 1, at para. 16. See also Buet, cited in footnote 10, at paras. 11, 12 and 15. FN29 See also my Opinion in Case C-169/89, Gourmetterie Van den Burg: [1990] E.C.R. 2143, at para. 8 et seq. In my view, the criterion applied by the Court in B & Q, according to which an obstacle to intra-Community trade may not exceed what is necessary for the attainment of the objective pursued, reflects both aspects of the criterion of necessity: the restrictive national legislation is relevant with regard to the objective pursued, since it is necessary for the attainment of that objective and has therefore been enacted with that end in view; the legislation may not go beyond what is necessary for the attainment of that objective, which implies that a less restrictive alternative is not available. However, the criterion of proportionality is not incorporated in that, since on the basis of that criterion legislation which is necessary for the attainment of the objective in question, and therefore does not exceed what is necessary, must nevertheless be set aside by the member-State. Does this mean that in B & Q the Court abandoned the criterion of proportionality and thus went back on its earlier case law? I think not: in Case C-145/88 the Court had no need to rely on the criterion of proportionality--any more than it does in these cases--since it was immediately apparent, as it is now in these proceedings, that the obstacles created by the national legislation in question certainly were not, and are not, of such a kind as to compel the member-State to dispense with a measure necessary for the attainment of a justified objective. If, on the other hand, the obstacle is of such a kind as to jeopardise the integration of the market, it may seriously be doubted whether it is still proportionate to the in itself legitimate objective pursued by the measure. Hence I take the view that the absence of any reference to the criterion of proportionality in B & Q is not of fundamental importance and that the reason for the omission lay in the specific circumstances of the case, from which it was clear that any obstacles which

might be created were not particularly serious. *763 For the sake of completeness, I should point out that it is the Court itself which weighs the objective and the obstacle, on the basis of both the criterion of necessity and the criterion of proportionality, in interpreting Article 30 or Article 36 in relation to specific national legislation described in a reference for a preliminary ruling. [FN30] In case of doubt, therefore, a national court can submit a question to the Court for a preliminary ruling. FN30 See the case law cited in footnote 19. 15. Applying the foregoing considerations in relation to the interpretation of Article 30 EEC to the national legislation before the Court, I come to the conclusion (a) that legislation imposing a (limited) prohibition on Sunday working of the kind at issue here may, according to the findings made by the national court, affect trade between member-States in the broad sense of the term as used in Dassonville; (b) that the objective pursued by that legislation, namely the designation of a single day of rest for employees, Sunday, may be regarded as a legitimate objective under Community law; (c) that the legislation at issue, which is neutral in relation to imports, is not designed to govern patterns of trade beween member-States, and, again in the light of the findings made by the national courts, the obstacles to intra-Community trade resulting therefrom are not of such a kind as to jeopardise the integration of the market; (d) that in those circumstances it cannot be concluded that the obstacles created exceed what is necessary for the attainment of the objective pursued, or that they are out of proportion thereto. Accordingly, I consider that the national legislation in question is compatible with Article 30.

The interpretation of Article 34 EEC 16. In the order for reference in Case 332/89 the Court has also been requested to give a ruling on the interpretation of Article 34 in connection with a prohibition on the employment of workers on Sundays. The question is thus whether such a prohibition can be regarded as a quantitative restriction on exports which is incompatible with the Treaty. In order to answer that question it is sufficient to refer to the established case law of the Court concerning Article 34 EEC. In Case 15/79, Groenveld v. Produktschap voor Vee en Vlees, the Court stated as follows: That provision [Article 34] concerns national measures which have as their specific object or affect the restriction of patterns of exports and thereby the establishment of a difference in treatment between the domestic trade of a member-State and its export trade in such a way as to provide a particular advantage for national production or for the domestic market of the State in question at the expense of the production or of the trade of other member-States. This is not so in the case of a prohibition *764 like that in question [forbidding a manufacturer of processed meat products from having in stock or processing horsemeat] which is applied objectively to the production of goods of a certain

kind without drawing a distinction depending on whether such goods are intended for the national market or for export (paragraph 7). That ruling, which has been followed by the Court in later judgments, [FN31] precludes commercial legislation applicable to products without distinction (in other words legislation which does not have as its specific object or effect the restriction of exports) from being considered incompatible with Article 34. That must also hold true for legislation of the kind now before the Court, which is applicable to products without distinction. As we have seen, it is not designed to govern patterns of trade between member-States, and there is no evidence that it renders the production or marketing of goods intended for export more difficult than that of goods intended for the domestic market. FN31 See, for instance, in addition to Oebel (cited above in footnote); Case 286/71, Oosthoek: [1982] E.C.R. 4575, [1983] 3 C.M.L.R. 428; Case 172/82, Fabricants Raffineurs D'Huile de Graissage v. Inter-Huiles: [1983] E.C.R. 555, [1983] 3 C.M.L.R. 485, and Case 237/82, Jongeneel Kaas v. Netherlands: [1984] E.C.R. 483, [1985] 2 C.M.L.R. 53.

The interpretation of Article 59 et seq. EEC 17. Article 59 et seq. EEC concern the freedom to provide services, and in its order for reference in Case C-332/89 the national court asks whether those provisions preclude a prohibition on the employment of workers on Sundays. The answer to that question must, in my view, be deduced from Article 60(1) EEC, which provides as follows: Services shall be considered to be 'services' within the meaning of this Treaty where they are normally provided for remuneration, in so far as they are not governed by the provisions relating to freedom of movement for goods, capital and persons (emphasis added). Since in this case it must be assumed, on the basis of the judgment in Case C-145/88, that the legislation in question is commercial legislation falling within the scope of Article 30, the provisions on the freedom to provide services are not applicable to it.

The interpretation of Articles 3(f), 5 and 85 EEC 18. Finally, it remains for me to consider whether the competition rules in the Treaty can be applied to legislation of the kind at issue. The defendants in the main proceedings have raised this question in both cases. Only the national court in Case C-332/89 has submitted that question to the Court, apparently on the basis of the defendants' argument that the legislation complained of 'distorts competition' and *765 that by enacting or maintaining it a member-State is in breach of the rules of competition in the Treaty. However, Articles 3(f) and 85 do not deal with a disruption of competition of that kind: those provisions are indeed concerned with the maintenance of competition within the Common Market, but they impose a prohibition on agreements, decisions or concerted practices between undertakings which distort competition. There would not appear to be

any question of agreements, decisions or concerted practices in the situation before the national court. The Court has admittedly held that it follows from the combined provisions of Articles 3(f), 5 and 85 EEC that the principles laid down in Article 85 must also be complied with by the member-States. More specifically, the Court has held that the member-States are under a duty not to adopt or maintain in force any measures which could deprive Article 85 of its effectiveness. That would be the case, in particular, if a member-State encouraged the conclusion of agreements, decisions or concerted practices contrary to Article 85 or reinforced their effects. [FN32] However, there is no evidence whatsoever in the documents before the Court that this is so with regard to the legislation at issue. FN32 See, for instance, Case 311/85, Vereniging Van Vlaamse Reisbureaus v. Social Dienst Van de Plaatselijke en Gewestelijke Overheidsdiensten: [1987] E.C.R. 3801, [1989] 4 C.M.L.R. 213, in particular at paras. 9 and 10.

Conclusion 19. On the basis of the foregoing considerations, I suggest that the Court answer the questions referred to it for a preliminary ruling as follows:

In Case C-312/89 Articles 30 and 36 EEC must be interpreted as meaning that the prohibition laid down therein does not preclude national legislation which forbids the employment of workers on Sundays where that legislation, which is not designed to govern patterns of trade between member-States, does not render the marketing of imported goods more difficult than that of domestic goods or render the market less accessible to imported goods. In such a case, any restrictive effects on intra-Community trade resulting from that legislation do not exceed what is necessary for the attainment of the objective pursued by it and are not out of proportion to that objective.

In Case C-332/89 Articles 30 and 36 EEC must be interpreted as meaning that the prohibition laid down therein does not preclude national legislation which forbids the employment of workers on Sundays where that legislation, which is not designed to govern patterns of *766 trade between member-States, does not render the marketing of imported goods more difficult than that of domestic goods or render the market less accessible to imported goods. In such a case, any restrictive effects on intra-Community trade resulting from that legislation do not exceed what is necessary for the attainment of the objective pursued by it and are not out of proportion to that objective. Neither Articles 59 to 66 nor Article 3(f) in conjunction with Articles 5 and 85 EEC are applicable to legislation of that kind. JUDGMENT (in Case 312/89)

[1] By an order of 5 October 1989, which was received at the Court on 11 October 1989, the President of the Tribunal de Grande Instance, Saint-Quentin, sitting in interlocutory proceedings, referred to the Court for a preliminary ruling under Article 177 EEC two questions on the interpretation of Articles 30 and 36 EEC, in order to assess whether national legislation prohibiting the employment of workers on Sundays was compatible with those Articles. [2] Under sections L.221-2, L.221-4 and L.221-5 of the Code du Travail (Labour Code) in force in France, the weekly rest period to be granted to employees, a minimum of 24 consecutive hours, must be allowed on Sunday. [3] On the ground that Sidef Conforama, Arts et Meubles and Jima were opening their shops on Sundays and employing their staff on those days, the Union Départmentale des Syndicats CGT de l'Aisne submitted an interlocutory application to the Tribunal de Grande Instance, Saint-Quentin, for an injunction to restrain the respondent companies from opening their shops on Sundays, subject to a fine for contravention. [4] The President of the Tribunal de Grande Instance, Saint-Quentin, referred to the Court for a preliminary ruling two questions worded as follows: Can the concept of 'measures having equivalent effect' to quantitative restrictions on imports contained in Article 30 EEC be applied to a general provision whose effect is to prohibit Sunday working for employees, inter alia in a sector such as furniture retailing, when: (1) that sector deals to a large extent in products imported, inter alia, from member-States of the EEC; (2) a considerable proportion of the sales of undertakings in that sector is made on Sundays in cases where those undertakings have taken the step of contravening the provisions of national law; (3) closure on Sundays has the effect of reducing the volume of sales effected and thus the volume of imports from member-States of the Community; and, finally, (4) the obligation to allow employees their weekly rest period on Sundays does not apply in all the member-States? If so, can the characteristics of the sector in question be regarded as meeting the criteria set out in Article 36 EEC? *767 [5] Reference is made to the Report for the Hearing for a fuller account of the legal context and the facts of the dispute before the national court, the course of the procedure and the written submissions lodged with the Court, which are mentioned or discussed hereinafter only in so far as is necessary for the reasoning of the Court. [6] It must be observed in limine that although the Court has no jurisdiction, in preliminary reference proceedings, to rule on the compatibility of a national provision with the Treaty, it is nevertheless empowered to provide the national court with all the criteria for the interpretation of Community law which will enable the latter to assess that compatibility for the purpose of giving judgment in the case before it. First question

[7] In its first question the Tribunal de Grande Instance seeks to establish whether provisions prohibiting the employment of workers on Sundays, in particular in a business such as selling furniture to the public, constitute a measure having equivalent effect to quantitative restrictions within the meaning of Article 30 EEC. [8] National legislation which prohibits the employment of staff on Sundays in a sector such as furniture retailing is not designed to control trade. None the less, it may entail restrictive effects on the free movement of goods. Although it is improbable that the closure of certain types of shop on Sundays will cause consumers to refrain altogether from purchasing products which are available on week-days, the fact remains that such a prohibition may have negative repercussions on the volume of sales and hence on the volume of imports. [9] Furthermore, legislation of that kind affects the sale of both domestic and imported products. In principle, the marketing of products imported from other member-States is not therefore made more difficult than the marketing of domestic products: see Case 145/88, Torfaen Borough Council v. B & Q. [FN33] FN33 [1989] E.C.R. 3851, [1990] 1 C.M.L.R. 337. [10] In Torfaen the Court ruled, in relation to similar national legislation prohibiting the opening of retail shops on Sundays, that such a prohibition was not compatible with the principle of the free movement of goods provided for in the Treaty unless any obstacle to Community trade thereby created did not exceed what was necessary in order to ensure the attainment of the objective in view and unless that objective was justified with regard to Community law. [11] That being so, it must first be stated that legislation such as the legislation at issue pursues an aim which is justified with regard to Community law. The Court has already held, in the Torfaen case, that national rules governing the opening hours of retail premises reflect certain political and economic choices in so far as their purpose is to *768 ensure that working and non-working hours are so arranged as to accord with national or regional socio-cultural characteristics, and that, in the present state of Community law, is a matter for the member-States. [12] It must further be stated that the restrictive effects on trade which may stem from such rules do not seem disproportionate to the aim pursued. [13] In answer to the first question submitted it must therefore be held that the prohibition contained in Article 30 EEC, properly construed, does not apply to national legislation prohibiting the employment of staff on Sundays. Second question [14] In view of the answer given to the first question there is no need to answer the second question. Costs

[15] The costs incurred by the French Government and the E.C. Commission, which have submitted observations to the Court, are not recoverable. As these proceedings are, in so far as the parties to the main proceedings are concerned, in the nature of a step in the action before the national court, the decision on costs is a matter for that court. On those grounds, THE COURT, in answer to the questions referred to it by the President of the Tribunal de Grande Instance, Saint-Quentin, by order of 5 October 1989, HEREBY RULES: The prohibition contained in Article 30 EEC, properly construed, does not apply to national legislation prohibiting the employment of staff on Sundays. JUDGMENT (in Case 332/89) [1] By a judgment of 5 October 1989, which was received at the Court on 27 October 1989, the Cour d'Appel, Mons, referred to the Court for a preliminary ruling under Article 177 EEC a question on the interpretation of Articles 3(f), 5, 30 to 36, 59 to 66 and 85 EEC, with a view to determining whether national legislation prohibition the employment of workers in retail shops on Sundays after 12 noon was compatible with those articles. [2] Under the combined provisions of sections 11 and 14(1) of the Belgian Loi sur le Travail (Labour Act) of 16 March 1971, it is prohibited to employ workers in retail shops on Sundays after 12 noon. *769 Section 53 of that Act provides that an employer in breach of the prohibition is punishable by imprisonment and a fine. [3] André Marchandise, a director of Trafitex SA, and Jean-Marie Chapuis, an employee of that company, were prosecuted for having employed on several occasions between 14 September 1986 and 14 December 1986 nine workers on a Sunday after 12 noon in a retail shop, contrary to the Loi sur le Travail of 16 March 1971. [4] On 1 June 1988 the Tribunal Correctionnel (Criminal Court), Charleroi found the accused guilty of the offences and fined them, with terms of imprisonment in the alternative--the sentences being suspended in the case of Jean-Marie Chapuis. In the same judgment Trafitex SA was declared liable in civil law to pay the fines. [5] All the parties appealed against the judgment, and the Fourth Chamber of the Cour d'Appel, Mons, sitting as a criminal court, made an order in which it referred to the Court for a preliminary ruling a question as to whether: Sections 1, 11, 14(1), 53, 54, 57, 58 and 59 of the Act of 16 March 1971, as amended in particular by the Act of 20 July 1978 and by Royal Decree 15 of 23 October 1978, [are] contrary to Articles 3(f), 5, 30 to 36, 59 to 66 and 85 EEC. [6] Reference is made to the Report for the Hearing for a fuller account of the legal context and the facts of the dispute before the national court, the course of the procedure and the written submissions lodged with the Court, which are mentioned or discussed hereinafter only in so far as is necessary for the reasoning of the Court.

[7] It must be observed in limine that although the Court has no jurisdiction, in preliminary reference proceedings, to rule on the compatibility of a national provision with the Treaty, it is nevertheless empowered to provide the national court with all the criteria for the interpretation of Community law which will enable the latter to assess that compatibility for the purpose of giving judgment in the case before it. Article 30 EEC [8] The Cour d'Appel seeks in essence to establish whether provisions prohibiting the employment of workers in retail shops on Sundays constitute a measure having equivalent effect to quantitative restrictions within the meaning of Article 30 EEC. [9] National legislation which prohibits the employment of staff on Sundays in retail shops is not designed to control trade. None the less, it may entail restrictive effects on the free movement of goods. Although it is improbable that the closure of certain types of shop on Sundays will cause consumers to refrain altogether from purchasing products which are available on week-days, the fact remains that such a prohibition may have negative repercussions on the volume of sales and hence on the volume of imports. *770 [10] Furthermore, legislation of that kind affects the sale of both domestic and imported products. In principle, the marketing of products imported from other member-States is not therefore made more difficult than the marketing of domestic products: see Case 145/88, Torfaen Borough Council v. B & Q. [FN34] FN34 [1989] E.C.R. 3851, [1990] 1 C.M.L.R. 337. [11] In Torfaen the Court ruled, in relation to similar national legislation prohibiting the opening of retail shops on Sundays, that such a prohibition was not compatible with the principle of the free movement of goods provided for in the Treaty unless any obstacle to Community trade thereby created did not exceed what was necessary in order to ensure the attainment of the objective in view and unless that objective was justified with regard to Community law. [12] That being so, it must first be stated that legislation such as the legislation at issue pursues an aim which is justified with regard to Community law. The Court has already held, in the Torfaen case, that national rules governing the opening hours of retail premises reflect certain political and economic choices in so far as their purpose is to ensure that working and non-working hours are so arranged as to accord with national or regional socio-cultural characteristics, and that, in the present state of Community law, is a matter for the member-States. [13] It must further be stated that the restrictive effects on trade which may stem from such rules do not seem disproportionate to the aim pursued. [14] In answer to the question submitted it must therefore be held that the prohibition contained in Article 30 EEC, properly construed, does not apply to national legislation prohibiting the employment of staff on Sundays after 12 noon. Article 34 EEC

[15] The question submitted by the national court also seeks to establish whether the measure in question constitutes a quantitative restriction on exports for the purposes of Article 34 EEC. [16] In that connection it should be recalled that, in Case 15/79, Groenveld v. Produktschap voor Vee en Vlees [FN35] the Court ruled in essence that a national measure which is applied objectively to the production of goods of a certain kind without drawing a distinction depending on whether such goods are intended for the national market or for export is not incompatible with Article 34 EEC. FN35 [1979] E.C.R. 3409, [1981] 1 C.M.L.R. 207. [17] The answer to this part of the question submitted for a preliminary ruling must therefore be that national legislation prohibiting the employment of workers on Sundays after 12 noon is not incompatible with Article 34 EEC, since it is not designed to control patterns of trade between member-States and is applied in accordance *771 with objective criteria to all traders in a given sector, without distinguishing between goods which the consumer intends to use where they are bought and those which he wishes to export. Articles 59 to 66 EEC [18] The national court also raises a question as to the validity of the measure at issue in the light of Articles 59 to 66 EEC. Those articles seek to establish freedom to provide services within the Community. Article 60 EEC provides that services are to be regarded as such where they are normally provided for remuneration, except inter alia where they are governed by the provisions on the free movement of goods. [19] The present case relates to legislation laying down rules for the conduct of the retail trade whose objective is worker protection. In view of those characteristics the legislation must be examined by reference to Article 30 EEC, as the Court stressed in Torfaen, cited above. Accordingly, the provisions on the freedom to provide services cannot apply. Articles 3(f) and 85 EEC [20] Finally, the Cour d'Appel asks the Court to examine the national provisions in the light of Articles 3(f), 5 and 85 EEC. [21] The question raised by the national court with regard to those provisions must be construed as seeking in essence to determine whether or not national legislation prohibiting the employment of workers in retail shops on Sundays is compatible with the obligations imposed on member-States by Article 5 EEC, read in conjunction with Articles 3(f) and 85. [22] It must be pointed out in that regard that Articles 85 and 86 EEC per se are concerned only with the conduct of undertakings and not with national legislation. The Court has consistently held, however, that Articles 85 and 86 EEC, in

conjunction with Article 5, require the member-States not to introduce or maintain in force measures, even of a legislative nature, which may render ineffective the competition rules applicable to undertakings. Such would be the case, the Court has held, if a member-State were to require or favour the adoption of agreements, decisions or concerted practices contrary to Article 85 or to reinforce their effects, or to deprive its own legislation of its official character by delegating to private traders responsibility for taking decisions affecting the economic sphere: see Case 267/86, Van Eycke v. Aspa. [FN36] FN36 [1988] E.C.R. 4769, [1990] 4 C.M.L.R. 330, para. [16]. [23] In the present case there is no evidence before the Court to support the conclusion that the legislation at issue seeks to reinforce the effects of pre-existing agreements, decisions or concerted practices. Moreover, no aspect of the legislation is liable to deprive it of its official character. *772 Costs [24] The costs incurred by the E.C. Commission, which has submitted observations to the Court, are not recoverable. As these proceedings are, in so far as the parties to the main proceedings are concerned, in the nature of a step in the action before the national court, the decision on costs is a matter for that court. On those grounds, THE COURT, in answer to the question referred to it by the Cour d'Appel, Mons, by judgment of 5 October 1989 HEREBY RULES: 1. The prohibition contained in Article 30 EEC, properly construed, does not apply to national legislation prohibiting the employment of staff on Sundays after 12 noon. 2. The prohibition contained in Article 34 EEC, properly construed, does not apply to such legislation. 3. Neither Articles 59 to 66 nor the combined provisions of Articles 3(f), 5 and 85 EEC are applicable to such legislation.

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